The Bounty Hunter Gregg and the Saints: Are Criminal Charges Forthcoming?

Does yesterday’s release of an excerpt[1] from Gregg Williams’s speech to the Saints players before the team faced the San Francisco 49ers in a wild-card playoff game this past season and the NFLPA’s recent hiring[2] of outside counsel to represent players potentially involved in the bounty program pose the possibility of criminal charges for both Williams and his players (stemming from their respective roles in the bounty scandal)? Now this has certainly become a hot topic of discussion. As a young attorney with a passion for sports, I hope to shed some light on the situation by briefly discussing why the NFLPA hired outside counsel for the players, as well as possible causes of action in a manner that will hopefully be understandable and useful to sports fans.[3] It is my opinion that criminal charges will not be brought against the players or Williams due to the difficulty of proving all of the elements of the possible causes of action. Another reason is the administrative and resource burden that would be placed on a prosecutor in pursuing criminal charges.

While much has been made of the NFLPA’s decision to hire outside counsel, this move is really just a precautionary measure based on the civil rights of the players. Every episode of Law & Order includes someone getting handcuffed and read his or her rights. One of those rights is the right to speak with an attorney. More specifically, someone who is under “custodial interrogation,”[4] is entitled to have an attorney present during the questioning. As Dave Chappelle taught[5] us, one can refuse to answer questions in a legal proceeding if the response would lead to criminal liability for that person. In legalese, the Fifth Amendment’s “privilege against self-incrimination” and the Sixth Amendment’s “right to counsel” are the constitutional protections, which guarantee these rights. While it should be stressed that questioning by the NFL is not even close to the same thing as a police interrogation, the reasoning behind the constitutional protections listed above still applies. In essence, since the players are being questioned about an illegal bounty program, their answers could implicate them and lead to increased punishment, so that the NFLPA isn’t taking any chances. By having lawyers present during questioning, the players have added protection from answering provocative questions and giving incriminating responses. While it seems unlikely that any criminal charges will result, the NFLPA has decided to play it safe for now versus being sorry later.

As for the charges which potentially could be brought against Williams and the players, utilizing the sophisticated “spaghetti approach”[6] yields the following most likely causes of action: assault, battery, and conspiracy. However, there are two major problems with bringing any sort of criminal suit against Williams and the players. One is that each of these causes of action requires substantive proof that there was the requisite intent to truly injure the opposing player. In attempting to show that this intent was present, the prosecutor will have to meet the “beyond a reasonable doubt” standard of proof required in criminal cases, and that is a high threshold to meet. The other major problem is that because football itself is a violent and physical endeavor, it is difficult, if not impossible to discern where to draw the line between permissible contact between players and hits that would rise to the level of criminal liability. In legal terms, this relates to “assumption of risk,” which is a fancy way of saying that since the players have agreed to knock each other’s brains out in exchange for money, they should expect to get battered around when they step on the gridiron. Thus, while it appears unlikely that criminal charges are forthcoming, I will still touch upon the three causes of action listed below:[7]

1. Assault:

An assault occurs when one person uses force or threatens to use force in a manner that creates a “reasonable apprehension of imminent harmful or offensive contact.”[8] As an illustrative example, if you saw someone running toward you holding a knife, that type of behavior would be an assault. In this context, the problem with the cause of action is that virtually every tackle on a football field includes an assault on the player being tackled. It is nearly impossible to distinguish what sort of threat or force would be over and above the expected physical punishment inherent in football. Thus, this cause of action would be difficult to sustain.

2. Battery:

A battery is the actual “use of force against another, resulting in harmful or offensive conduct.”[9] Using the assault example above, if the person running at you with the knife proceeded to cut you, then the act of cutting you would be a battery and there would be an assault as well. However, if the runner suddenly stopped before touching you, there would still be an assault, but there would be no battery. Criminal charges for battery suffer from the same issues as assault; football games contain numerous batteries during the course of games. This type of behavior is accepted and expected in NFL games, so proving that a particular tackle or hit was harmful conduct above and beyond a normal football play would be extremely difficult.

3. Conspiracy:

A conspiracy is an agreement between two or more people to carry out an unlawful objective.[10] Besides the agreement, each of the conspirators must have the intent to carry out the unlawful objective. In the bounty scandal, on the surface it seems pretty clear that explicitly paying players to hurt other players is an unlawful objective, but on some level isn’t that what NFL players are paid to do? This could be a debatable issue for a jury, but the bigger problem lies in proving the intent of the conspirators. Even if it can be shown that Williams had the requisite intent, the above definition of conspiracy shows that there must be at least one other person who had the same intent and was involved in the agreement. This would mean that a prosecutor would have to prove beyond a reasonable doubt that at least one of Williams’s players specifically intended to maim an opposing player so that he could collect the bounty fee. However, finding that kind of proof would be difficult if not impossible. While this charge seems to be more plausible than assault or battery, it still seems unlikely that a prosecutor would bring criminal charges against Williams or his players based on a conspiracy theory.

In conclusion, it is this author’s opinion that criminal charges will not be brought against Gregg Williams or any of his former players due to the issues inherent in proving such charges. The decision by the NFLPA to hire outside counsel was merely to safeguard the players’ best interests and protect them from punishment, which is much more likely to be through the league rather than the law.

[3] As an attorney, it is my duty to note that the legal discussion included in this column is merely one attorney’s opinion and should not be interpreted or construed as legal advice or fact.

[4] I will put legal buzzwords and phrases in quotation marks because they continually come up in the news and because the actual meaning of these words and phrases has been debated for decades by lawyers.

[6] This sophisticated term of art is actually not sophisticated, artistic, or even a real legal term at all. It merely means to throw a bunch of spaghetti against a wall to see what sticks. Any lawsuit that comes from this bounty scandal will contain a number of legal theories and charges, but I will limit my discussion to three causes of action in particular.

[7] All legal definitions for this section are from Black’s Law Dictionary (3rd edition), which is a law student’s Bible.

[8] Not only is the whole phrase full of legal buzzwords, but it also comes straight from Black’s Law.